Outside Publication

Complex Facts Require a Map, a Guide and a Story, Texas Lawyer

August 01, 2011

To write a clear and persuasive brief, a lawyer should provide a road map, serve as a helpful guide for complex facts and tell a powerful story.

Above all, counsel should remember that the reader is a busy judge or law clerk with a stack of other briefs vying for his attention. Making it as easy as possible for the reader to grasp key facts quickly gives an attorney's legal arguments a much better chance of success.

• Provide a road map. The table of contents should outline the most important points. Section headings should spell out crucial concepts to keep the reader oriented and on track. For example, the heading "Apex fails to meet three deadlines, and two customers file complaints" conveys the story more than "Contract performance from 2008 through 2009."

A lawyer who needs to present five stories for five plaintiffs can help the reader keep the stories straight by using descriptive headings, such as "Ms. Snow fails to sell any widgets in 2007 and is terminated in January 2008." Even after the judge reads the brief, the table of contents can serve as a handy refresher course on counsel's strongest factual points.

A concise introduction—even if not required—can be invaluable in helping the reader understand the main issues and arguments before diving into the facts. The reader will be better able to focus on the key facts and understand why they're important when armed with a framework in which to fit them.

• Serve as a helpful guide to complex facts. A lawyer should explain complex facts or relationships early in the brief. Sometimes it can be a challenge to do that without interrupting the writing's flow. But it's worth the effort to strike the right balance, because the reader will want to know the larger context of the facts up front.

Bullet points can serve as a quick reference guide for the reader. But a writer should keep them to a manageable length, so the reader is not overwhelmed with too much information (and thus tempted to skip them). Bullet points can help explain the parties' roles or set forth a chronology. Use short sentences that readers will understand completely on the first reading.

The brief writer must do the hard work of hacking through the facts, so the busy reader won't have to do so. Particularly when drafting a brief by committee, everyone will have ideas about which facts to include. The writer must build extra time into the drafting schedule to analyze suggestions and resolve differences of opinion.

A persuasive brief ultimately will need to cut facts that do not bear on the outcome of the legal issues - except for the best atmospherics, which help tell the client's story. For example, listing an opponent's every mistake in a breach of contract action quickly grows tiresome. But quoting from an e-mail where the defendant reveals its indifference to a client's project packs some punch.

The reader will appreciate a streamlined brief, so a lawyer should cut, and then cut some more. No one has ever put down a brief and thought: "Gee, that brief would have been so much better if it had just been a little longer."

Of course, if the writer cuts too much, the facts may not make sense. To avoid oversimplification, someone brand new to the case should read the draft and point out any language that needs clarification or any paragraphs that need better transitions. If the case involves a specialized industry or area of law, the author must help the reader become familiar with it, and avoid jargon like the plague.

A lawyer using defined terms for parties or transactions should double-check that she defines those terms the first time she uses them (unless they are so obvious that defining them insults the reader's intelligence). The reader does not want the identity of "FRL" to remain a mystery until page 17. Better yet, a lawyer should avoid indecipherable acronyms whenever possible, and use "the board" or "the report" instead. She can use defined terms to her advantage, by avoiding acronyms that depersonalize her client.

• Tell a powerful story. Most important, the lawyer must tell his client's story. He should give the court comfort about ruling in his client's favor, and motivate it to do so. Appellate courts focus not only on reaching the right result in the instant case but also on how that ruling will affect other cases.

Counsel must adhere to the highest standards of ethics. Take seriously the duty of candor to the court, be forthright and remain scrupulously honest. Resist the temptation to ignore bad facts. Explaining them and helping the court deal with them is far more effective. If you don't, your opponent will - but to his advantage, not your client's. The slightest omission or shading can damage credibility. The reader is likely to conclude that a writer who can't be trusted with the facts probably can't be trusted on the law, either.

Keep in mind the appropriate standard of review. If the appellate court can reverse only for an abuse of discretion or must view the facts in the light most favorable to a jury verdict, asking the court to re-weigh the facts will fail. Instead, an attorney should use the facts to convince the court that her client deserves to win, and then emphasize an erroneous application of law by the trial court.

A lawyer who can guide the reader through complex facts while telling a persuasive story is well on the way to securing the best possible result for the client—and assisting the court in rendering its decision, as well.

Reprinted with permission from the Aug. 1, 2011, edition of Texas Lawyer. © 2011 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited.